You put it in writing, you aced the negotiations, and you are ready to execute the contract. Don’t let down your guard at the last minute! The following points are worth noting when executing a contract in New York. While neglecting to follow the below points may not result in an invalid or unenforceable contract per se, following below “good practice” can help to avoid problems later on. Remember, spending a little extra time to get it right the first time – a minor expense; staying out of court – priceless.
1. Don’t let technology (or anybody else) fool you
If the contract has gone through several rounds of negotiation and revisions, don’t assume that the last circulated “execution copy” is what you think it is. Before you sign, be one hundred percent sure that you know exactly what you are signing (you’d be surprised how many people neglect this one). Microsoft Word “Tools” – “Track Changes” – “Compare Documents” is your friend here.
2. Read the Contract – No, really, Read it
Under New York law, you are generally bound by a contract that you signed even if you have no knowledge of its content. Unless fraud or other wrongdoing is involved, you are presumed to know the contents of the contract.
3. Date the Contract
While a contract need not be dated to be valid and enforceable, it is kind of foolish to not date a contract. Dating helps to identify a contract years later and puts the contract into chronological context.
FYI, you can predate a contract under New York law. If you provide that your contract is entered into “as of” a date earlier than the date of execution, the agreement is effective retroactively “as of” such date.
4. Both parties should execute the contract
It might come as a surprise to you, but in New York, unless a signature is required by statute, you don’t necessarily have to sign an agreement for it to be valid. If you and the other party in some other way indicate consent to the contract, you are both bound.
However, nothing beats a solid signature from both parties when it comes to proving that a contract was entered into by the parties with an intent to be bound thereby. Better yet, put a provision into the contract that provides that the contract is not binding unless signed by both parties.
The signatures of each party to the contract do not necessarily have to appear on the same page of the contract, as long as you both agree that only the signature pages together constitute a complete executed agreement. To that end, parties to a contract sometimes include a provision that states “the parties may execute this contract in counterparts, each of which is deemed an original and all of which constitute only one agreement.”
5. Initial last-minute handwritten changes to the contract
Any last-minute change to a contract that is done by hand should be initialed by the parties to the contract. Better though, insist on a revised contract reflecting the change.
6. Sign in your correct capacity
If you are signing for an entity, make sure that the signature block properly identifies you. For example, if you are signing as president of a corporation, the signature block should read substantially like this:
Name: Joe Smith
Signing correctly on behalf of a corporation prevents later claims that you are personally liable under the agreement.
7. Check the other party’s authority to sign
For example, if the other party to the contract is a corporation, you want to be sure that the corporation is in existence, that the person signing on behalf of the corporation is authorized to do so, and, particularly in larger transactions, that the corporation approved the contract by consent of its shareholders or directors.
8. Get an original executed copy of the contract for your files
If you are old school and are actually signing a paper contract with a pen, each party should have an original executed copy of the contract for their files. In other words, if there are two parties to the contract, you have to execute two identical contracts. One copy goes to you, one copy goes to the other party. Each copy constitutes an original contract.
9. Go Ahead and use Docusign, Hellosign, or any other electronic document signing service
Execution of a contract via these services is perfectly legal and enforceable in New York.
Once the contract is executed, Can I get out of that Contract?
10. Get an experienced Attorney to help you
If the contract involves a large amount of money or binds you for a long time to come, I highly recommend getting an attorney to help you. I have reviewed and negotiated hundreds of agreements and can spot issues that you may not notice. Feel free to contact me to discuss your contract.